This paper addresses the question framed by the Law Commission of Ontario: “What principles and considerations should be applied when considering placing limitations on the ability of persons with disabilities to make their own choices?” The ability to make one’s own decisions based on personal values and in the context of meaningful choices is a defining feature of what it means to be a person and a full citizen. A basic tenet of liberal-democratic philosophy is that the state has a primary role in protecting autonomy or the right of individuals to choose and pursue their own life path, and all the decisions that entails along the way – related to personal relationships, where to live, educate, work, what health care interventions to accept or reject, and a wide range of financial and property decisions.
Yet many people with more significant intellectual, cognitive and psychosocial disabilities[2] face substantial or total restrictions in making their own decisions. They often encounter others who presume they are unable to guide their own lives, are people who need to be ‘fixed’, or protected, and who limit or completely restrict the scope of their decision making.[3] Many people are physically isolated or socially and economically excluded and therefore without meaningful choices or the opportunity to develop a vision and direction for their own lives, and to make their own decisions.[4] Service provision in the disability and older adult sectors is often based on charity and protection models, and an assumption that because people need supports and care, others should make decisions on their behalf. Often service providers also require that they are provided decision making authority on behalf of those they are supporting so they can more efficiently manage the range of individual decisions related to care, medications, activities, etc. As people age and their cognitive functioning declines, family, community members, and service providers often respond by restricting the scope of the person’s decision making. Individual decision making is restricted in informal ways, and also through formally authorized substitute decision making and guardianship.
There is a growing critique of the substitute decision-making approach to managing individual decision making for people with intellectual, cognitive and/or psychosocial disabilities. Indeed, as early as 1982, Alan Borovoy directly challenged adult guardianship as
one of the most intrusive encroachments that a democracy can impose… a democratic society has no business rendering people susceptible to the loss of this most precious freedom on the basis of a question-begging definition and elastic terminology. Indeed, I see no reason why we have to go beyond . . . those kinds of emergency situations where an arguable cause (sic) might be made for some kind of encroachments on a person’s liberty.[5]
How the state best protects and enhances autonomy is at the heart of the question this paper addresses. In this paper we explore negative and positive liberty approaches to protecting and enhancing autonomy. It is the relationship and tension between the two that informs and guides the analysis throughout.
Determining a person as incapable or incompetent to manage his or her affairs in some or all respects removes a person’s authority over their own lives and vests this authority in another. While usually done in the name of protection, such removal of an individual’s legal personhood is increasingly seen from a disability rights perspective as a violation that brings social and legal harm to individuals. The concern is that individuals are no longer addressed as persons in their own right when their legal capacity to act is restricted, and thus their moral and legal status is more likely to be diminished in the eyes of those in close personal relationships, caregivers, community members, health and human services, and public institutions.[6] This diminishment contributes to the risk of stereotyping, objectification, negative attitudes and other forms of exclusion which people with disabilities disproportionately face; and which increase powerlessness and vulnerability to abuse, neglect and exploitation.[7]
Critical analysis of guardianship legislation from a human rights perspective has grown in recent years not only in Canada, but internationally. For example, the Mental Disability Advocacy Centre has undertaken a number of studies on guardianship law, policy and practice in Central and East European countries, and concludes in one of its reports, with respect to people under guardianship:
[They] are subject to significant, arbitrary and automatic deprivations of their human rights. These include a deprivation of their right to property, to work, to family life, to marry, to vote, to associate freely, and to access courts. Even if not specifically deprived of certain rights, a lack of procedural capacity ensures their inability to enforce them.[8]
In addition to challenges from the civil and disability rights movements, reliance on this substitute approach to decision making is increasingly challenged through developments in jurisprudence, legislation and international law. Most recently, the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by Canada in March 2010, emphasizes in its guiding principles respect for individual autonomy, dignity and freedom to make one’s own choices without discrimination on the basis of disability. Article 12 of the CRPD ‘Equal Recognition Before the Law’ recognizes the right to legal capacity on an equal basis with others without discrimination on the basis of disability and, in Article 12(3), the obligation of States Parties to ensure access to supports individuals require to enjoy and exercise their legal capacity.
Jurisprudence and legislative reform in Canada and elsewhere are beginning to grapple with what full recognition of the right to legal capacity requires. There is little doubt that Article 12 has signaled and initiated a major transformation in the law of legal capacity – what many have referred to as a ‘paradigm shift.’ Oliver Lewis has suggested that the CRPD as a whole “has the potential to become a transformative international legal instrument which innovates domestic politics as much as policies” in its expressive, educational and proactive roles.[9] With respect